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I gave my take yesterday on Chris McDaniel’s strange and toxic demand that he be rewarded the GOP Senate nomination in Mississippi because African-American Democrats voted for his opponent. But at TPMCafe, distinguished election law specialist Rick Hasen offers a more authoritative opinion. And he can’t figure out what McDaniel is doing, because he’s asking for a remedy nobody is given based on laws nobody believes are real.

[W]hat McDaniel must be asking for is a “proportional reduction” of votes based upon such polling, which would subtract more votes from Cochran than McDaniel. That remedy was strongly rejected in the contested Washington state governor’s race between Rossi and Gregoire, and I don’t expect a court would accept that here to declare the loser the winner….

[I]t is hard enough to get a court to declare a new election after ballot irregularities. To get the court do declare the loser the winner is a remedy which almost never happens absent strong proof of fraud on the winner’s side….

To begin with, despite all the talk of massive fraud by the McDaniel campaign for weeks, there is virtually nothing substantiating fraud alleged in the complaint. The main “fraud” is Democrats who intended to vote for the Democratic nominee during the general election being allowed to vote in the Republican primary. Given that such voting was deemed acceptable before the election by both the Secretary of State and the Attorney General (in line with longstanding practice and an earlier AG opinion), neither the party nor the court will count this as fraud.

As to other potential fraud and irregularities, there is nothing here that meets the standard to show enough fraud in the election to require it to be overturned. At most this shows that the elections were not administered competently in some jurisdictions. (This is not breaking news to anyone who follows how elections are actually run.) There’s nothing to show that these problems were deliberate fraud, or done in a way that particularly hurt McDaniel.

At most, what McDaniel alleges should lead to a new election. Surely any election lawyer with some experience who would say that McDaniel will be declared with winner with this dossier is smoking something which I believe is still illegal in the state of Mississippi.

Hasen assumes McDaniel’s legal basis for his challenge is the much-discussed idiotic law banning voters who do not “intend” to support a party’s nominee to participate in its primaries, which, as Hasen pointed out, has been deemed “unenforceable” by the state’s Attorney General and which McDaniel didn’t formally cite before the election and now is debarred from using in any event. I’m guessing he wrote his piece before McDaniel’s campaign also began citing an obscure RNC rule supposedly banning “crossover” votes in runoffs (which on its face does not even seem applicable to Mississippi, and probably wouldn’t matter because Team Chris can’t come up with enough examples of voters participating in the Democratic primary and then the Republican runoff to erase Cochran’s lead, even if they all voted for the incumbent).

In any event, Hasen views McDaniel’s complaint as largely frivolous, and adds this blast with a nice kicker:

I think it is clear that McDaniel should become a national member of the Fraudulent Fraud Squad. His website today still accuses Democrats of “stealing” the election. It is a serious allegation, but one not backed by the evidence. Such charges are pernicious when they are not backed by proof. For weeks McDaniel promised that proof and has not delivered.

I only hope that those Republicans on the receiving end of spurious claims of voter fraud will remember this the next time when they might be in the position to stop unsubstantiated charges like that from being levied against others.

Fat chance of that.

Ed Kilgore
is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.

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